State v. James , 443 P.3d 1063 ( 2019 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 117,945
STATE OF KANSAS,
Appellee,
v.
GROVER D. JAMES,
Appellant.
SYLLABUS BY THE COURT
1.
On the conflicting evidence admitted at trial in this homicide case, the district
judge erred by refusing to give lesser included offense instructions for reckless second-
degree murder, reckless involuntary manslaughter, and imperfect self-defense involuntary
manslaughter. None of these errors, evaluated for harmlessness under the state statutory
standard, was reversible standing alone.
2.
A district judge is not required to instruct a jury to consider a lesser included
homicide offense simultaneously with any greater homicide offense.
3.
Autopsy photographs, like other photographic evidence, are relevant if they have a
reasonable tendency to prove a material fact. A district judge does not abuse his or her
discretion by admitting autopsy photographs that are used by an expert witness to explain
the path of a fatal bullet and the victim's resulting skull fractures.
1
4.
A prosecutor commits error when he or she states during closing arguments that a
car was "stolen" despite an absence of evidence supporting a theft or criminal
deprivation. In this case, such an error was harmless under the governing constitutional
standard.
5.
A continuance hearing is a critical stage at which a criminal defendant has a
constitutional right to be present, unless he or she has knowingly and voluntarily waived
that right. Assuming a violation of the defendant's right occurred in this case, the error
was harmless under the governing constitutional standard.
6.
Cumulative error does not require reversal of the defendant's convictions in this
case.
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed June 28, 2019.
Affirmed.
Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause, and Sam Schirer, of the
same office, was on the briefs for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
2
BEIER, J.: This is defendant Grover D. James' direct appeal of his convictions for
first-degree premeditated murder of Leon McClennon and criminal possession of a
firearm.
James challenges the district judge's refusal to give certain lesser included
homicide instructions and failure to tell the jury to consider certain homicide offenses
simultaneously. He also challenges the admission of autopsy photographs into evidence,
alleges reversible prosecutorial error, and asserts he was deprived of his constitutional
right to be present at all critical stages of his trial. James also argues that cumulative error
requires reversal of his convictions.
Although we identify errors in James' case, the errors are not reversible standing
alone or cumulatively. For the reasons outlined below, we affirm James' convictions.
FACTUAL AND PROCEDURAL BACKGROUND
Resolution of James' appellate issues require an unusually extensive review of the
factual and procedural background of this case.
On the night of May 8 and into the early morning hours of May 9, 2015, Rance
Kindred's friends and family threw him a birthday party, held in the basement of the
Parrot-fa-Nalia dress shop in Wichita. The party was attended by a variety of Kindred's
friends and family, including: Grover "Boo" James, Kindred's friend; August Hughes,
James' girlfriend; Keialsha James, James' sister; Torey West, Kindred's girlfriend and
James' sister; Artadius "Ta Ta" Johnson, Kindred's son; and Leon "Fat Head"
McClennon, Johnson's cousin and Kindred's nephew.
3
Johnson and McClennon ended up at the party after Johnson spoke with Kindred
on the phone. At the party, Kindred introduced James and Johnson for the first time.
Kindred would testify that he had "wanted them to meet each other" but "it went bad right
away because Ta Ta [Johnson] swolled up," that is, swelled his body in a confrontational
manner. See Urban Dictionary, https://www.urbandictionary.com/define.php?term=swole
(last visited June 28, 2019). The tension between the two escalated throughout the
evening over a perception that Johnson was "mugging" James. On more than one
occasion, Kindred told Johnson that he needed to "squash" his issues with James.
At some point in the evening, Johnson left with McClennon and another cousin
before he returned to the party to "chill with [his] auntie and stuff." According to
Johnson, Kindred made another attempt to convince Johnson to "squash" things with
James, which caused Johnson to "want[] to fight." But before things escalated too far,
another of Johnson's cousins—Anita Jones—grabbed him and calmed him down.
After this confrontation, many of the guests began leaving the party. Johnson and
McClennon stayed to help clean up. James and Hughes initially left the party, but,
Hughes would eventually testify, she remembered she had offered to help clean up; so
she and James went back.
Surveillance camera footage captured what happened in the Parrot-fa-Nalia
parking lot and outside the entrance to the basement upon James and Hughes' return. The
footage would later be admitted at James' trial.
When James and Hughes pulled into the Parrot-fa-Nalia parking lot, Johnson and
McClennon were outside. At that point, Johnson and McClennon immediately went down
to the basement. Trial testimony would establish that the door at the bottom of the stairs
to the basement was shut and could not be opened from the outside.
4
Surveillance footage from inside the door shows that Keialsha, James' sister,
opened the door. Johnson and McClennon can be seen coming through the door, followed
almost immediately by James. Hughes came through the door a moment later.
The events that followed inside the basement—outside the view of any
surveillance camera—were disputed at trial. It is undisputed, however, that James fired
two shots, one of which hit McClennon in the head, killing him. The internal surveillance
footage then shows, approximately 37 seconds after the group had moved off camera,
McClennon stumbling headfirst to the floor, where his motionless body comes to rest.
While McClennon's body is lying on the ground, James walks past it and back up the
stairs. Hughes follows him.
After the shooting, James drove Hughes' car to Oklahoma. He was apprehended
there and was charged with first-degree premeditated murder and unlawful possession of
a weapon.
James' first appearance on the charges was in later October 2015. On December
14, 2015, James filed with the clerk of the court a letter he had written to his then-
attorney Brad Sylvester. The letter asked Sylvester to take certain actions in his case.
James asked Sylvester to "file and pursue any and all necessary paperwork to insure a
speedy trial, I'd also ask you to file a 180 day writ [and] a motion for statutory speedy
trial." James later reiterated a request that Sylvester "vigor[o]usly pursue" his "speedy
trial" and asked that Sylvester "not continue my preliminary hearing . . . or continue my
trial ever." James also asked to be present at "any and all hearings . . . when my case is
d[i]scussed."
5
After District Court Judge David J. Kaufman found probable cause at James'
January 13, 2016, preliminary hearing, James waived arraignment and the case was set
for jury trial on February 16, 2016.
On February 16, Sylvester requested a continuance in a filing titled, "Notice and
Order Concerning Defense Counsel's Request to Continue Trial after Consultation with
the Defendant." District Court Judge Jeffrey E. Goering granted the request to continue
the case and reset trial for March 14, 2016. The form document, which was signed and
submitted by Sylvester, contained the following paragraph:
"'In submitting this request to the Court, the named defense counsel represents to
the Court that counsel has consulted with the named defendant about this continuance
and this continuance is to be charged to the defendant pursuant to K.S.A. 22-3402(g).'"
On March 16, Sylvester asked for another continuance, using an identical form
document. Judge Goering again granted the request and reset trial for June 6, 2016.
On April 14, James filed a motion seeking to dismiss counsel. James alleged an
irreconcilable conflict and complete breakdown of communication. That same day, the
motion was set for hearing on April 22, 2016.
James was present for the motion hearing before District Court Judge John J.
Kisner, Jr. On April 22 Judge Kisner acknowledged James' previous concerns over a
speedy trial. Judge Kisner informed James that recent caselaw required that any further
continuances would require James to sign off on them or attend a hearing. Judge Kisner
denied the motion to dismiss counsel and informed James that any appointment of new
counsel would mean more time for trial preparation. James responded, "I'm not worried
about the time."
6
During the hearing, the court and parties discovered that a June 6 start date for
trial—the date that had been set on March 16—conflicted with the court's schedule. Trial
was reset for July 11, 2016. Judge Kisner advised James that the time would not be
charged to the State and asked if James was agreeable to the new trial date. James said he
understood and agreed to the new date.
On June 15, 2016, James filed an Objection to Continuance.
"COMES NOW, the Defendant, pro se, formally objecting to any continuance
sought by either the State or defense counsel in the above entitled action. The defendant
further asserts his statutory, K.S.A. 22-3208(7), and Fourteenth Amendment Due Process
right to appear at all 'critical stages' in a prosecution including any proceeding where the
court may order that the Defendant has waived any constitutional or statutory right."
The same day, James moved to dismiss the case with prejudice. James alleged that
his "statutory right to a fast and speedy trial, and his constitutional right to Due Process
and fast and speedy trial" had been violated.
In his motion, James set out a timeline of events, alleging that his trial had been
continued by his attorney on February 16, March 14, and June 6, outside of James'
presence and against his "clear wishes." James further alleged, "At no time has the
defendant been present in the courtroom or by video, and asked if he agreed to the
continuance or given the opportunity to object to the continuance" and that "[t]here are no
signed waivers of speedy trial or signed acknowledgments of continuance." According to
James, the time the State had to bring him to trial under K.S.A. 22-3402 began to run on
January 13, 2016, the date of his preliminary hearing, and expired on June 12, 2016.
7
The same day James filed his pro se motion, the district court clerk sent Sylvester
a letter advising him of the filing and saying that no further action would be taken unless
Sylvester directed otherwise.
On June 20, James filed another motion seeking to have Sylvester replaced. In an
affidavit filed the next day, James alleged he had informed Sylvester in writing that he
wanted to be present at all hearings but Sylvester had nevertheless failed to consult him
about any of the previous continuances. James further alleged that he had not been given
the opportunity to appear at any of the continuance hearings and that, had he been
present, he would have objected to any continuance.
On July 1, Judge Kaufman heard James' motion for new counsel. James explained
that he felt there was a communication breakdown between himself and Sylvester
because of the continuances Sylvester had requested without James' knowledge.
The State contradicted James' assertion that he had not been present or known
about any of the continuances, alerting the court to James' presence at the April 22
hearing and his agreement to the continuance granted that day.
James acknowledged that the State was correct but insisted the April 22
continuance was not the only one.
"It's several continuance[s]. I have it in my ROA that it's been continued by the defense
that I did not sign off on or anything, didn't know it. I also filed a motion for . . .
dismissal of case for fast and speedy trial violation, constitutional and statutory rights."
The State conceded that James had filed a motion to dismiss based on a speedy
trial violation. The motion had not been docketed for hearing because it was filed pro se.
8
Judge Kaufman ultimately granted James' request for new counsel.
On July 11, Judge Goering continued the trial setting again despite James' in-court
refusal to agree to it. James' new counsel had yet to receive any discovery. The State
asked for a continuance of the trial until September 12 because of the unavailability of
one of its witnesses. Judge Goering granted the State's request over James' objection and
set a "firm" trial date of September 12.
New counsel was appointed on three occasions in late August and early
September, culminating in Steven Mank's appointment on September 1. Mank would
represent James through the trial but be replaced before sentencing.
On September 12, Judge Goering signed off on another trial continuance,
continuing the case from September 12 to November 14, 2016. His order is a form
document similar to those filed by Sylvester in February and March. However, unlike the
earlier forms, this one required the defendant's signature approving the continuance. The
form shows James signed and dated it on September 10.
James' trial began on November 14, 2016, and was presided over by District Court
Judge Stephen Ternes.
At trial, the video surveillance footage from Parrot-fa-Nalia was introduced
through the testimony of Wichita Police Detective Robert Chisholm.
Chisholm's testimony was followed by the testimony of Dr. Timothy Gorrill, the
forensic pathologist who conducted the autopsy of McClennon.
9
Before Gorrill testified, Mank objected to admission of certain of the State's
anticipated autopsy photograph exhibits. Mank argued that the exhibits in question "are
not necessary to describe the manner of death or what happened to the victim in this case.
They are rather strong photographs. . . . [W]e would object to them for being overly
gruesome and . . . not warranted in this case." The State argued that the challenged
photos were necessary for Gorrill to explain the autopsy.
Judge Ternes overruled the objection. He acknowledged that the photos were
"somewhat graphic," but "autopsy photos tend to be that way." Without hearing Gorrill's
testimony, Judge Ternes could not say the challenged photos were unnecessary. Mank
renewed his previous objection when the State introduced the autopsy photos during
Gorrill's testimony. The judge again overruled the objection.
The first four photos showed McClennon's body, including closeups of his head
and the gunshot wound. Specifically, one image showed an "obvious injury" at the
bottom of McClennon's ear. Another showed a "skin defect, a hole, a gunshot wound."
Gorrill concluded that this injury was an entry wound because there was no "exit defect"
and they had "recovered a bullet along the path."
The following photos were the focus of the defense objection.
Exhibit 38 showed "the top of Mr. McClennon's skull" after his scalp had been
"reflect[ed] back . . . with a scalpel." Gorrill highlighted a fracture in McClennon's skull
that could be seen in the image.
Exhibit 39 showed the base of McClennon's skull after a bone scalpel or saw had
been used "to remove that part of the skull" and then the brain removed. Gorrill noted
multiple skull fractures in the image. Based on the location of the fractures, Gorrill was
10
able to describe the likely path of the bullet. Gorrill concluded that the bullet entered the
left side of McClennon's head, traveled through his skull, and caused the fractures shown
in the photo.
Exhibit 40 showed "the interior of [McClennon's] neck, the vertebral column"
after the "neck structures" had been removed. Gorrill pointed out the projectile, which
was "in one piece up here in the back of the neck" in the photo. He then indicated on his
own body the approximate location where the projectile would have been lodged. He
described the location as "[k]ind of in the neck area."
Gorrill concluded "within a reasonable degree of medical certainty" that the cause
of McClennon's death was a "[g]unshot wound to the head" and that the manner of death
was homicide.
The State's main witnesses on the events that occurred off camera in the basement
were Johnson and Kindred.
Johnson testified that he and McClennon had not planned on going to the party
that night, but Kindred called Johnson and asked him to come. Johnson did not know
James but had seen him before.
After Johnson arrived at Parrot-fa-Nalia, he took a phone call in the parking lot.
Kindred approached with James. Kindred "[t]old me [James'] name, said it was Boo, told
Boo like who I was, told us we need to squash whatever was going on."
Johnson said James was upset about Johnson's romantic relationship with James'
niece. Johnson said he told James, "I was grown, she was grown." "He wanted me to
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leave her alone, told me to leave her alone and end it. I felt disrespected by it because we
both grown."
At that point, Johnson's cousin grabbed him and they left the party with
McClennon. They were gone 45 minutes to an hour. After Johnson "cooled down a little
bit," Johnson and McClennon returned to the party. Johnson testified that he had just
gotten out of prison and "wanted to spend time with everybody."
Kindred and James approached Johnson again after he returned. Kindred told
Johnson that he was "mugging" James and that
"you know, need to squash this, this and that. We need him on our side. I got upset. That's
when I wanted to fight. That's what I like to do, so I wanted to box. My cousin, Puddin,
she came and stopped me. Anita Jones, she came and grabbed me, took me to the back,
you know. She tried to squash it, break it up. They kept messing with me, so everybody
got kind of mad. That's when my [dad] said the matter was over with, everybody started
leaving and stuff."
Johnson denied "mugging" James at the party, saying, "No. If I was mugging him, I
would have approached him." For clarity, the Urban Dictionary describes "mugging" as
"star[ing] or look[ing] at someone with malignant thoughts or intentions." Urban
Dictionary, https://www.urbandictionary.com/define.php?term=Mugging (last visited
June 28, 2019).
As most people, including James, left the party, Johnson and McClennon stayed
with Kindred and several members of James' family.
Just after Johnson finished helping to load speakers in the parking lot, he "heard
some tires screeching pulling in the parking lot." Johnson looked up and saw "a black
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Jeep Cherokee . . . pulling in real fast." The driver was wearing a blue hat and a blue
shirt, which was what James had been wearing.
Johnson testified, "[I] [g]rabbed my cousin and ran downstairs, back down the
stairs but the door was shut." They "[b]anged on the door, . . . tried to get in before he
came . . . around the corner." Neither he nor McClennon was carrying a weapon, and
Johnson thought James was coming after him,
"[b]ecause we had gotten into it. I been in the streets for a lot of years, you know. So my
intuition kicked in. I already knew what was going on. He pulled in too fast, didn't look
right. We had been getting into it. It wasn't right, something wasn't right. Plus no matter
what, he was coming back. No matter what, I had my little cousin with me so I had to
protect him, tried to."
Keialsha opened the door. Johnson and McClennon pushed their way in and ran to
Kindred, who was standing by the dance floor talking to his family. Johnson told Kindred
that "his home boy was coming down the stairs with his gun, to get [Johnson]."
Kindred told Johnson that
"it was my fault, deal with it. I always wanted to be a gang member . . . . [B]asically
saying, you know, it's on me. I got to deal with that . . . he ain't going to jump on it. He
stood on the left on the side of me. Fat Head was on the right side of me. I was in the
middle. He just told me it's your fault basically."
Kindred did not try to talk to James but Johnson
"kept telling [James] to put the gun down, kept telling him when he walked in there,
came in there, he kept, you know, hollering am I tripping out 'cause this, this and that. I
13
kept telling him put the gun down, man, just put the gun down. You ain't got to go there,
just put the gun down."
In addition, James' "mom and his sisters was in front of him telling him to stop. It wasn't
worth it, just an argument . . . . That's when he fired in the air. I grabbed my cousin,
turned around, told him to come on."
After the first shot was fired, Johnson ran toward the back door. He did not look
back because he felt "bullets flying past [his] head." Johnson soon realized McClennon
was not behind him. The door had locked behind Johnson, and he ran to the front of the
building to find out what had happened. When Johnson descended the front stairs to the
basement, he saw McClennon's body on the floor.
Johnson also testified that none of this would have happened if he had brought a
gun with him, because he would have shot James first.
During cross-examination, Johnson admitted that he had wanted to fight James
that night but claimed that McClennon did not want to fight. When confronted with a
description of his earlier statement to police "that your cousin took his shirt off to fight
[James]," Johnson called defense counsel Mank a liar and denied making the statement.
Mank also asked Johnson if a third person, someone named "Travis," was also at
Parrot-fa-Nalia that night. Johnson admitted that Travis had been there "for like ten
minutes." Travis' last name is not included anywhere in the trial transcript.
Kindred's version of events were presented to the jury through a video taken the
day after the shooting and through live testimony. In the video, Kindred had explained
what happened to McClennon's sister.
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Kindred testified that Johnson had called him on the night of the party to see if
Johnson could come to the party and bring McClennon. Kindred told him, "No. The
police be checking this building. [McClennon's] underage." Despite Johnson's disregard
of this warning, Kindred introduced Johnson to James because he wanted them to meet,
but "it went bad right away because Ta Ta swolled up."
In the video, Kindred was asked whether James had said he was leaving the party
to get a gun. According to one unidentified person who can be heard in the video, several
people had heard James make such a statement. Another unidentified person also
reported hearing James' mother say that James was leaving to get a gun. Kindred said that
was not true, based on James' post-shooting comments to him. James had told Kindred
that he always had a gun with him, and that if he had wanted to shoot anyone, he would
have done so earlier.
Kindred also said in the video that the door into the basement had been shut
because he wanted to show everyone how Johnson had been "mugging" James
throughout the night; Kindred did not want Johnson to walk in during the demonstration.
Kindred also told McClennon's sister that he told "Ta Ta" after the first altercation
to leave "Boo" alone because they needed to keep "Boo" on their "team." According to
Kindred, "Boo" was "a killer." He will "kill [someone] out here and don't give a fuck
about it."
In the video, Kindred also said Johnson and McClennon had run into the basement
and then run behind him. Johnson and McClennon were telling Kindred that James was
his "boy" and that he could stop James. Kindred said he walked toward James and tried to
explain who McClennon and Johnson were and persuade James not to shoot them.
15
Kindred believed he had convinced James to stop, but Johnson and McClennon were
standing on the dance floor, acting as if they were preparing to fight, and saying "let that
nigga go."
Kindred told James that if he wanted to fight Johnson and McClennon, he could,
but he needed to put the gun away. Believing James had put the gun in his pocket,
Kindred moved out of the way, expecting a fight to ensue. But, as soon as he moved out
of the way, he saw James put the gun in his right hand and shoot into the air.
In the video, Kindred further explained Johnson and McClennon ran different
directions when James fired. Kindred ran behind James. Kindred did not say whether he
believed James intended to hit McClennon with the second shot fired. He saw
McClennon start to stumble and go down. Initially he thought McClennon was just
ducking; Kindred realized McClennon had been hit when his body went limp.
After being shown the video at trial, Kindred testified he had lied when he told
McClennon's sister James always "roll[ed]" with a gun. According to Kindred, "if I know
he had a gun, I would have told him don't come to my party with no gun."
During cross-examination, Kindred testified that Johnson had "called some guys to
come to the party." Kindred did not think they should be at the party, "because the guys
he called, I know that they gang members. They Folks."
After Johnson's friends arrived, someone told Kindred that Travis had a gun.
Kindred confronted Travis and told him: "If you got a gun, you better get it out of here
right now." Travis told Kindred that he had a gun but "didn't bring it up here for no
problems." Kindred started to walk away, but Travis called him back and told him, "If I
bring a pistol to something like this, I ain't bringing it to give to nobody else. I can use it
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myself." Kindred replied, "[Y]eah, but you ain't going to do it up in here because if you
do, I'm going to fuck you up."
Kindred was asked if he "remember[ed] [Travis] being there prior to the shooting,
like immediately prior to the shooting" and responded, "He was there the whole time."
After the State concluded its case-in-chief, Hughes, West, and James testified for
the defense.
Hughes testified that she and James left the party to go home but came back when
she remembered she had promised to help clean up. When they returned to Parrot-fa-
Nalia, Hughes stayed outside for a moment to smoke before going downstairs.
When she got downstairs, she saw a confrontation around the dance floor. "I just
seen a crowd of people rushing towards Boo as I was walking towards his mom who was
sitting at the table cleaning it off." She saw "three or four boys" approaching James, one
of whom was Travis. As the group approached James, she heard one of them say "what's
up now[?]"
Hughes then heard a gunshot and started to run. She heard a second gunshot and,
when she looked up, saw McClennon on the floor. Hughes then continued running,
leaving Parrot-fa-Nalia with someone else. By the time she reached the outside of the
building, both James and her car were gone.
West testified that some of Johnson's friends, including Travis, had shown up at
the party earlier in the evening. At some point, she noticed Travis had a pistol. West told
Kindred about the pistol but was not sure whether he had done anything about it.
17
West did not see what had caused the final confrontation. She explained,
"We were cleaning up. The party was over. Pretty much everyone was gone. It
was more a majority of women down in the party still cleaning up. We heard a big bam at
the door. I'm not sure who opened the door, door came flinging open.
"I saw my brother and girlfriend back up. He had her behind him like backing up.
Three guys came . . . . [James] was pushing her around [a bench] so that he wouldn't fall
and get back there. One guy came on the side, one stood on a thing right here (indicating)
and one stood on the dance floor."
West claimed Travis was there at the time. "He was standing by the long side of
the thing on the side of the building like inside the building like it separated the dance
floor and the bar." According to West, Travis was wearing an orange shirt. She heard
someone yelling, "[Y]eah, what's up nigga now[?]" When asked who yelled, West said it
was Johnson.
West saw Johnson take his hoodie off like "[h]e wanted to fight." She saw that
"Leon [McClennon] was in his stance like trying to go towards where everybody else was
at and [Travis] was standing along the side of that bank with his hand behind his back."
West then heard but did not see a gunshot. She did not know who had fired. When
she heard the shot, she ducked and then heard a second shot. West stayed down after the
second shot and did not see what happened. When she got up, everyone was gone. She
saw McClennon on the floor and stayed with him until police arrived.
James testified that he did not know either Johnson or McClennon before the party
and did not know anyone in the "younger" group at the party. When James met Johnson,
it did not go well because of a "little thing on Facebook" between Johnson and James'
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nephew. According to James, after the initial introduction, Johnson was "mugging" him
as if he had a problem with him.
James and Hughes left the party, but came back because Hughes wanted "to help
[and] wanted to get a plate." When they returned, James walked into the basement
immediately after Johnson and McClennon. James' testimony continued:
"When I come in, Rance[ Kindred is] standing right there. I'm walking up to
Rance. August [Hughes] walks toward my mother when I walked in. Ta is like what up
now, nigga. So I look at him like you want to trip now. So he was standing maybe I'd say
10, 15 feet into the dance floor.
"I walk right past Fat Head when I walked in. He didn't say nothing to me. I
didn't have no problem with the brother. I don't know him. So he was standing there. He
walked behind me like towards the—more towards the tables.
"Then there was another cat out there at that time. I didn't know who he was. He
had on an orange shirt. He was standing there. Rance called to me. He was like kind of
pushing me back. So we stood there for a minute[.]
....
[Kindred was saying,] Calm down, bro. Don't trip on that. Don't trip on that, and
then after that it just—everything exploded from there I mean.
....
"Ta Ta is standing there like this, right. Yeah. What's up now nigga, puffing all
up (indicating). I see Fat Head take off his hoodie. He's standing like to the side of me.
The other dude is standing back there, but he's standing back there like this like yeah, you
know (indicating [with right hand behind his back])."
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James interpreted the "other dude['s]" action to mean "[t]hat he had a gun. He had
something." James did not see a gun but saw "something flash, was like silverish."
The three kept coming toward James, James said. "I pulled out my gun and I fired
and then I fired again." James testified that he was not firing at anyone.
James also testified that he had the gun on his "hip" the entire night and that he
was carrying it because it is
"[c]razy out here, man. I just lost an acquaintance of mine maybe two weeks before that.
My niece, Reesha . . . was killed about a month before that. Another friend of mine was
on the highway and the car pulled up beside him and gun—tried to gun him down. It's
just—I was keeping it for protection.
....
"I was in fear for my life. I didn't know what they was going to do to me. I seen a
friend of mine maybe five or six months ago, some dudes jumped him, stomped him
crushing his skull, killed him."
After the shooting, James left Parrot-fa-Nalia. "I get in the truck, and I just drove,
man." He ended up in Oklahoma. He was,
"[s]cared man. I had never been in no situation like that in my life. Then when I did talk,
I had talked to Rance [Kindred]. When he told me like the baby, you know, Fat [Head]
had died, that was a baby. That was a kid, dude. That wasn't my intention to hurt that
man. I didn't know him. I have a 17-year-old son. I don't know what I would do if it was
my son."
20
James requested jury instructions on the lesser included crimes of second-degree
murder, voluntary manslaughter, and involuntary manslaughter for the first-degree
murder charge.
The State opposed an instruction on second-degree murder under a theory that
James had killed McClennon "unintentionally but recklessly under circumstances that
show extreme indifference to the value of human life." See K.S.A. 2018 Supp. 21-
5403(a)(2). It argued that the evidence was "clear [James] fired two shots" and the
"second shot was fired directly at Fat Head and hit him in the left side of the face. . . .
That was an intentional act." If a second-degree murder instruction were to be given, the
State urged Judge Ternes to limit it to intentional second-degree murder. See K.S.A. 2018
Supp. 21-5403(a)(1).
Mank argued that sufficient evidence supported instruction on both theories of
second-degree murder.
"Mr. Kindred testified [James] told him he didn't mean to hit anybody. The fact that one
shot apparently was fired straight up into the ceiling I think goes to show that at least as
far as the first shot goes, he wasn't intending to shoot or hit anybody, ever."
Judge Ternes agreed with the State. "The way that I see it is it would be
inconsistent I believe with the testimony of the defendant who clearly said at least twice
that he was fearful of this group that he says surrounded him. It would be inconsistent
then for him to fire recklessly." On the same rationale, Judge Ternes also denied James'
request to instruct on reckless involuntary manslaughter. Mank objected unsuccessfully.
21
The State also opposed the voluntary manslaughter instruction sought by the
defense, but Judge Ternes ultimately included voluntary manslaughter instructions on the
theory of imperfect self-defense.
Mank also sought an involuntary manslaughter instruction on the theory James
committed a "lawful act in an unlawful manner," i.e., "excessive use of self-defense." See
K.S.A. 2015 Supp. 21-5405(a)(4). The State objected, arguing it was not appropriate
because it required an "unintentional act and all the evidence shows this was an
intentional act."
The judge declined to give the instruction because he could not "go all the way to
involuntary manslaughter." He did not believe the evidence supported such an
instruction.
The final instructions read to the jury before closing arguments included:
"Instruction No. 4, in Count 1 the defendant is charged with murder in the first
degree. The defendant pleads not guilty. To establish this charge each of the following
claims must be proved: No. 1, the defendant intentionally killed Leon McClennon. No.
2, the killing was done with premeditation. No. 3, this act occurred on or about the 9th
day of May, 2015, in Sedgwick County, Kansas.
....
"Instruction No. 5, if you do not agree that the defendant is guilty of murder in
the first degree, you should then consider the lesser included offense of murder in the
second degree.
"To establish this charge each of the following claims must be proved: No. 1, the
defendant intentionally killed Leon McClennon. No. 2, this act occurred on or about the
22
9th day of May, 2015, in Sedgwick County, Kansas. A defendant acts intentionally when
it is the defendant's desire or conscious objective to do the act complained about by the
State.
"Instruction No. 6, if you do not agree that the defendant is guilty of murder in
the second degree, you should then consider the lesser included offense of voluntary
manslaughter. To establish this charge each of the following claims must be proved: No.
1, the defendant knowingly killed Leon McClennon. No. 2, it was done upon an
unreasonable but honest belief that circumstances existed that justified deadly force in
defense of a person. No. 3, this act occurred on or about the 9th day of May, 2015, in
Sedgwick County, Kansas.
....
"No. 7, the offense of murder in the first degree with which the defendant is
charged includes the lesser offenses of murder in the second degree and voluntary
manslaughter. You may . . . find the defendant guilty of murder in the first degree or
murder in the second degree or voluntary manslaughter or not guilty.
"When there is a reasonable doubt as to which of the two or more offenses
defendant is guilty, he may be convicted of the lesser offense only, provided the lesser
offense has been proven beyond a reasonable doubt. Your presiding juror should then
mark the appropriate verdict.
"Instruction No. 8, defendant claims his use of force was permitted as the defense
of a person. [The] defendant is permitted to use physical force against another person
including using a weapon when and to the extent that it appears to him and he reasonably
believes such physical force is necessary to defend himself against the other person's
imminent use of unlawful force.
"Reasonable belief requires both a belief by defendant and the existence of facts
that will persuade a reasonable person to that belief. Defendant is permitted to use against
another person physical force that is likely to cause death or great bodily harm only when
23
and to the extent that it appears to him that he reasonably believes such force is necessary
to prevent death or great bodily harm to himself from the other person's imminent use of
unlawful force.
"Reasonable belief requires both a belief by defendant and the existence of facts
that would persuade a reasonable person to that belief. When use of force is permitted as
self-defense, there is no requirement to believe this presumption may be overcome if you
are persuaded by a reasonable doubt that the person did not reasonably believe that use of
force likely to cause death or great bodily harm was necessary to prevent imminent death
or great bodily harm to himself.
....
"Instruction No. 10, a person who initially provokes the use of force against
himself is not a person permitted to use force to defend himself unless the person
reasonably believes that he is in present danger of death or great bodily harm and he has
used every reasonable means to escape such danger other than the use of physical force
which is likely to cause death or great bodily harm to another person or the person has in
good faith withdrawn from physical contact with the other person and indicates clearly to
the other person that he desires to withdraw and stop the use of force but the other person
continues or resumes the use of force."
During the State's rebuttal closing argument, the prosecutor argued that James
would not have fled to Oklahoma if the shooting were justified.
"I submit to you a justified man who is killing because he's so scared does not
run down the road to Oklahoma in a stolen vehicle. A justified man who has a right to
that self-defense to protect himself or the ones he loves from someone else does not pitch
his weapon out at 47th and Pawnee as he says he did. Those are not the actions of a
justified man acting in defense of himself."
24
The jury found James guilty of first-degree murder and criminal possession of a
weapon.
Judge Ternes sentenced James to a Hard 50 life sentence for first-degree murder
and a concurrent 21-month sentence for criminal possession.
REFUSAL TO INSTRUCT ON RECKLESSNESS BASED HOMICIDES
James argues that Judge Ternes' refusal to instruct the jury on reckless second-
degree murder and reckless involuntary manslaughter constitutes reversible error.
An appellate court performs a four-step review of challenges to jury instructions:
"'"'(1) First, the appellate court should consider the reviewability of the issue
from both jurisdiction and preservation viewpoints, exercising an unlimited standard of
review; (2) next, the court should use an unlimited review to determine whether the
instruction was legally appropriate; (3) then, the court should determine whether there
was sufficient evidence, viewed in the light most favorable to the defendant or the
requesting party, that would have supported the instruction; and (4) finally, if the district
court erred, the appellate court must determine whether the error was harmless, utilizing
the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801
(2011), cert. denied [565 U.S. 1221] (2012).' [Citation omitted.]
"'"'Generally, a defendant is entitled to instructions on the law applicable to his or
her defense theory if there is sufficient evidence for a rational factfinder to find for the
defendant on that theory. [Citation omitted.] And if that defendant requests an instruction
at trial, the court must view the evidence in the light most favorable to the defendant.
[Citations omitted.]'
"'"We examine 'jury instructions as a whole, without focusing on any single
instruction, in order to determine whether they properly and fairly state the applicable law
25
or whether it is reasonable to conclude that they could have misled the jury.' [Citation
omitted.]" [State v.] Hilt, 299 Kan. [176] at 184-85 [322 P.3d 367 (2014)].' State v.
Mattox, 305 Kan. 1015, 1020, 390 P.3d 514 (2017)." State v. Pulliam, 308 Kan. 1354,
1361-62, 430 P.3d 39 (2018).
James requested both instructions and objected to their exclusion. This challenge
is therefore properly preserved.
We next examine whether the requested instructions were legally appropriate.
"An instruction on a lesser included crime is legally appropriate. State v. Plummer, 295
Kan. 156, 161, 283 P.3d 202 (2012). And a lesser included crime includes a 'lesser degree
of the same crime.' K.S.A. 2017 Supp. 21-5109(b)(1). This court has recognized five
degrees of homicide. In descending magnitude, they are capital murder, first-degree
murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter.
State v. Carter, 305 Kan. 139, 161, 380 P.3d 189 (2016) (citing State v. Cheever, 295
Kan. 229, 258-59, 284 P.3d 1007 [2012])." Pulliam, 308 Kan. at 1362.
Second-degree murder and involuntary manslaughter are both lesser degrees of first-
degree murder and would have been legally appropriate instructions.
Judge Ternes' rejection of the requested instructions turned on the element framing
the third step of our appellate analysis, whether the instructions were factually
appropriate. His interpretation of the admitted evidence was that, even under James' self-
defense version, James acted intentionally, because he feared the men surrounding him.
Both crimes at issue involve "reckless" behavior, but their degrees of recklessness
differ. Reckless second-degree murder requires the killing of a human being committed
"unintentionally but recklessly under circumstances manifesting extreme indifference to
the value of human life." K.S.A. 2018 Supp. 21-5403(a)(2).
26
Reckless involuntary manslaughter requires only the killing of a human being
committed "[r]ecklessly." K.S.A. 2018 Supp. 21-5405(a)(1). A "person acts 'recklessly' or
is 'reckless,' when such person consciously disregards a substantial and unjustifiable risk
that circumstances exist or that a result will follow, and such disregard constitutes a gross
deviation from the standard of care which a reasonable person would exercise in the
situation." K.S.A. 2018 Supp. 21-5202(j); see also State v. Gonzalez, 307 Kan. 575, 581,
412 P.3d 968 (2018) (outlining requirements of unintentional second-degree murder,
reckless involuntary manslaughter).
We have previously addressed the differences between the intentional and reckless
forms of second-degree murder in State v. Deal, 293 Kan. 872, 884, 269 P.3d 1282
(2012). In that case, we noted "blind conduct, while one form of reckless conduct, is not
the only type of conduct that can be reckless; even an intentional blow can result in an
unintentional but reckless killing." 293 Kan. at 882. "[I]t is not the intent to inflict a blow
but the intent to kill that is the focal point" of the distinction between intentional second-
degree murder and unintentional but reckless second-degree murder. 293 Kan. at 882.
"[T]he unambiguous language of [the second-degree murder] statute requires the
killing—the result—to be either intentional or unintentional." (Emphasis added.) 293
Kan. at 883 (citing substantively identical predecessor statute). In short, evidence that
James intended the underlying act of shooting is inadequate to rule out an instruction on
reckless second-degree murder. The question is whether there was evidence that a killing
was committed recklessly.
Although we decided Deal on law that predated the legislature's 2011 criminal
code recodification, the recodified statute on culpable mental states is consistent with its
holding. A person's conduct is intentional with respect to a result "when it is such
person's conscious objective or desire to . . . cause the result." K.S.A. 2018 Supp. 21-
27
5202(h). This stands in contrast to the definitions of "recklessly" and "reckless" under
K.S.A. 2018 Supp. 21-5202(j).
Looking at the evidence in this case in a light most favorable to James, as this
court must, we conclude that a jury instruction on reckless second-degree murder was
factually appropriate. There was testimony and physical evidence that James did not
intend to kill McClennon. The first shot fired by James went into the air and hit the
ceiling. James testified that he was not firing at anyone when he shot the second time.
This testimony echoed what he had told Kindred when he learned McClennon was dead.
Although James' version was disputed, there was enough that a reasonable juror could
have convicted James of killing McClennon recklessly while manifesting extreme
indifference to the value of human life. The State's responsive assertion that there is no
testimony that James fired "blindly" or fired only "warning shots" requires too much to
justify an instruction for reckless second-degree murder. The instruction was factually
appropriate, and the district judge's refusal to give the instruction was error.
It does not follow automatically that facts supporting a reckless second-degree
murder instruction also support a reckless involuntary manslaughter instruction because
of the difference in degree of recklessness between the crimes mentioned above. We thus
must examine the evidence supporting reckless involuntary manslaughter.
Recently, in State v. Gonzalez, 307 Kan. 575, 412 P.3d 968 (2018), this court
rebuffed a constitutional vagueness challenge to the greater crime, differentiating its
recklessness requirements from that of involuntary manslaughter along the way.
"'To convict a defendant charged with unintentional second-degree murder, the State is
required to prove not only that the defendant consciously disregarded a substantial and
unjustifiable risk that death will result from existing circumstances but also that the
28
defendant did so under "circumstances manifesting extreme indifference to the value of
human life." [Citation omitted.] Although recklessness is an essential element to prove
the offense in both statutes, the unintentional second-degree murder statute still requires
an additional element.'" Gonzalez, 307 Kan. at 583.
The "difference between unintentional second-degree murder and involuntary
manslaughter is one of degree and not one of kind." 307 Kan. at 583. There is a
"recognized spectrum of culpability for the results of one's reckless acts." 307 Kan. at
583. Recklessness attributable to "'purpose or knowledge is treated as depraved heart
second-degree murder, and less extreme recklessness is punished as manslaughter.'" 307
Kan. at 583 (quoting State v. Robinson, 261 Kan. 865, 877-78, 934 P.2d 38 [1997]). In
Gonzalez, the "instructions required the jury to place [the defendant's] conduct on that
spectrum by deciding whether the facts showed he was not just reckless in disregarding
the risk that [the victim] would die, but also extremely indifferent to the value of human
life." Gonzalez, 307 Kan. at 583.
This being said, on the particular evidentiary record before us today, an instruction
on reckless involuntary manslaughter also was factually appropriate. If jurors accepted
that James acted recklessly, the evidence did not foreclose culpability at either end of the
spectrum for the results of his reckless acts. The varying accounts of what happened
inside the basement—and outside view of any surveillance cameras—presented the jury
with a range of possibilities. It was the jury's task, not the district judge's, to consider the
evidence and assess factors—such as the number of people in the basement and James'
reasons for shooting—before reaching a conclusion on whether James' recklessness rose
to the second-degree murder level of extreme indifference to the value of human life. The
district judge also erred in refusing to give the reckless involuntary manslaughter
instruction.
29
We now turn to harmlessness. James argues that each of the errors identified is a
constitutional flaw in his trial. See State v. Salary, 301 Kan. 586, 599, 343 P.3d 1165
(2015). He urges us to reconsider our caselaw applying a statutory harmlessness test to
such instruction error. He argues that these errors implicate federal and state
constitutional guarantees of a defendant's right to present his or her theory of defense. See
State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003) (defendant entitled to present
theory of his or her defense; exclusion of evidence integral to theory violates defendant's
fundamental right to fair trial).
James does not cite any caselaw or other authority establishing the rule he seeks,
and he does not otherwise articulate an argument sufficient to persuade a majority of this
court to reconsider application of the statutory test in these circumstances. See State v.
Torres, 280 Kan. 309, 331, 121 P.3d 429 (2005) (simply pressing point without pertinent
authority, without showing why point sound despite lack of supporting authority or in
face of contrary authority akin to failing to brief issue; when party fails to brief issue,
issue considered waived, abandoned). We therefore continue to apply the statutory test
today.
Under that test we "must be persuaded that there is no reasonable probability that
the error will or did affect the outcome of the trial." State v. Ward, 292 Kan. 541, 565,
256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). The burden of demonstrating
harmlessness is on the party benefiting from the error, which, in this case, is the State.
See State v. Preston, 294 Kan. 27, Syl. ¶ 3, 272 P.3d 1275 (2012).
To reach a verdict in this case the jury had to resolve the conflict between two
competing versions of the critical moments surrounding the shooting of McClennon.
Either James returned to the party intending to do harm to Johnson and McClennon or he
returned for other reasons and then was forced to react to a lethal threat from Johnson,
30
McClennon, and Travis. The jury found James guilty of first-degree murder, which
required jurors to conclude not only that the killing was intentional but also premeditated.
See K.S.A. 2018 Supp. 21-5402(a)(1). This verdict eliminates the possibility that the jury
viewed the killing as merely reckless, and we can safely say there is no reasonable
probability the judge's refusal to instruct on either or both reckless second-degree murder
and involuntary manslaughter affected the outcome of the trial.
REFUSAL TO INSTRUCT ON IMPERFECT SELF-DEFENSE INVOLUNTARY MANSLAUGHTER
James' second appellate challenge mirrors his first. He argues that the jury should
have been instructed on imperfect self-defense involuntary manslaughter. Our analysis of
this issue uses the same analytical framework and standard of review outlined for his first
issue.
Imperfect self-defense based on a "lawful act [committed] in an unlawful manner"
has been characterized as a "lawful exercise of self-defense, but with excessive force,"
State v. McCullough, 293 Kan. 970, 976, 270 P.3d 1142 (2012), and was first recognized
in State v. Gregory, 218 Kan. 180, 185-86, 542 P.2d 1051 (1975).
James preserved this issue by requesting the instruction and objecting to its
omission.
The instruction was legally appropriate, because involuntary manslaughter is a
lesser degree of homicide and therefore a lesser included crime of first-degree murder.
The State argues in its brief that the instruction was not factually appropriate
because the crime requires the defendant's act to be unintentional. It cites relatively recent
opinions from the Court of Appeals interpreting the current version of involuntary
31
manslaughter, as well as older opinions from this court that interpreted the pre-
recodification statute. Although these authorities were good law when the State's brief
was filed, this court has since held that there is no requirement that "lawful act in an
unlawful manner" involuntary manslaughter be committed unintentionally. Pulliam, 308
Kan. 1354, Syl. ¶ 1 ("Conviction of involuntary manslaughter under an imperfect self-
defense theory pursuant to K.S.A. 2017 Supp. 21-5405(a)(4) does not require proof of a
reckless or unintentional killing.").
The State's alternative argument is that the evidence demonstrated James was an
initial aggressor who cannot rely on either perfect or imperfect self-defense. See K.S.A.
2018 Supp. 21-5226. According to the State, "overwhelming evidence showed that
defendant retrieved his gun, returned to the party, followed Johnson and the victim down
the stairs, and fired the fatal shot 37 seconds after entering the basement."
Although the State's version of the facts is certainly plausible, even arguably
probable, it was not the only version offered at trial. James testified that he had his gun
on his hip the entire night. Both he and Hughes testified that they came back to the party
because she had promised to help clean up. It is undisputed—and corroborated by
surveillance video—that James followed Johnson and McClennon back into the party.
But what happened during the next 37 seconds is not so clear. One version of events has
James surrounded by three menacing men, two of them ready to fight and the third
possibly armed with a gun. The question of whether James was the initial aggressor was a
fact question for the jury to decide and the answer not so obvious that the applicability of
imperfect self-defense was precluded.
The question remains whether an imperfect self-defense involuntary manslaughter
instruction was otherwise supported by the evidence admitted at trial and thus factually
appropriate.
32
Based on the trial evidence viewed in the light most favorable to James, we hold
that it was. One of the key points of contention at trial was whether any of the three men
James described as surrounding him had a gun. The State's position was that no one other
than James had such a weapon. If the jury agreed with the State on that point, it is
nevertheless possible the jury could have concluded, based on James' testimony and the
testimony of others, that James was warranted in exercising some level of self-defense
but exceeded necessary force by firing his gun. He would have committed a lawful act in
an unlawful manner.
It was error for the judge not to instruct the jury on imperfect self-defense
involuntary manslaughter.
Under the statutory harmless error standard, again, we "must be persuaded that
there is no reasonable probability that the error will or did affect the outcome of the trial."
Ward, 292 Kan. at 565. On the facts of this case, we conclude there was no reasonable
probability this instruction error affected the outcome.
Despite the theoretical possibility that the jury could have reached an involuntary
manslaughter verdict based on imperfect self-defense, such a verdict was highly
improbable. According to Gorrill's expert testimony and other witnesses, the second shot
that killed McClennon appears to have hit him as he was running away from James after
the first shot. Shooting an unarmed person in retreat is antithetical to self-defense, perfect
or imperfect.
SIMULTANEOUS JURY CONSIDERATION OF LESSER INCLUDED CRIMES
James argues that the jury should have been instructed to consider verdicts of
premeditated murder and imperfect self-defense voluntary manslaughter simultaneously.
33
James concedes that he did not request the instruction and thus this court should
review the issue for clear error. The State also argues that the invited-error doctrine
should preclude review by this court because James requested the instruction he now
challenges. In reply, James clarifies that he is not challenging Instructions 5 and 6, which
told the jury that "if you do not agree that the defendant is guilty of" the greater crime,
"you should then consider the lesser included offense." Rather, he is challenging the
judge's failure to affirmatively instruct the jury to consider premeditated first-degree
murder and imperfect self-defense voluntary manslaughter simultaneously.
Regardless of the merit of any preservation argument, James cannot prevail on this
issue. A majority of this court has held mere months ago that a "district court is not
required to instruct a jury to consider a lesser included homicide offense simultaneously
with any greater homicide offense." State v. Sims, 308 Kan. 1488, Syl. ¶ 2, 431 P.3d 288
(2018), pet. for cert. filed April 29, 2019. Regardless of any disagreements a minority of
the court might have had with that ruling, see 308 Kan. at 1507-09 (Beier, J., concurring)
("sequential consideration does not ensure that a jury ever reaches, much less effectively
considers, [defense] theory"), Sims is now the controlling precedent.
The district judge did not err by failing to instruct the jury to consider lesser
included crimes simultaneously.
ADMISSION OF AUTOPSY PHOTOS
James next challenges Judge Ternes' admission of autopsy photos over repeated
defense objections.
"'"'The standard of review for the admission of photographic
evidence requires the appellate court to first determine whether the
34
photos are relevant. If a party argued that the photographs are overly
repetitious, gruesome, or inflammatory, that is to say, prejudicial, the
standard of review is abuse of discretion.'" State v. Rodriguez, 295 Kan.
1146, 1156, 289 P.3d 85 (2012) (quoting State v. Riojas, 288 Kan. 379,
387, 204 P.3d 578 [2009]). Abuse of discretion also is the standard of
review when a party challenges evidence as cumulative.' State v. Hilt,
299 Kan. 176, 195, 322 P.3d 367 (2014).
"The burden of demonstrating abuse of discretion falls on the party asserting the
error. See State v. Rodriguez, 295 Kan. 1146, 1156, 289 P.3d 85 (2012). A district court
abuses its discretion when the challenged action
"'"'(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person
would have taken the view adopted by the trial court; (2) is based on an
error of law, i.e., if the discretion is guided by an erroneous legal
conclusion; or (3) is based on an error of fact, i.e., if substantial
competent evidence does not support a factual finding on which a
prerequisite conclusion of law or the exercise of discretion is based.'"'
295 Kan. at 1156 (quoting State v. Robinson, 293 Kan. 1002, 1027-28,
270 P.3d 1183 [2012])." State v. Love, 305 Kan. 716, 721, 387 P.3d 820
(2017).
James argues that Judge Ternes understated the gruesomeness of the photos and
that there was "not a compelling reason for admission, because the State had already
admitted a video showing Mr. McClennon's death in real time."
Photographic evidence is relevant if "it has a reasonable tendency to prove a
material fact." Love, 305 Kan. at 721.
"Autopsy photographs assisting a pathologist in explaining the cause of death are relevant
and admissible, but those serving only to '"'inflame the minds of the members of the
35
jury'"' are not. Rodriguez, 295 Kan. at 1157 (quoting State v. Riojas, 288 Kan. 379, 387,
204 P.3d 578 [2009]). In addition, a district court may abuse its discretion by admitting
unduly repetitious photographs. 295 Kan. at 1157. 'The admission of photographs in a
murder case has rarely been held to be an abuse of discretion.' 295 Kan. at 1157 (citing
State v. Sappington, 285 Kan. 176, 195, 169 P.3d 1107 [2007]). '"[B]ecause the State has
the burden to prove every element of the crime charged, photographs used to prove the
elements of the crime, including the fact and manner of death and the violent nature of
the crime, are relevant even if the cause of death is not contested."' Hilt, 299 Kan. at 196;
see State v. Dupree, 304 Kan. 43, 64, 371 P.3d 862 (2016) ('As to materiality,
photographs showing the jury the manner of death are material in a murder trial.')." Love,
305 Kan. at 721-22.
The photos James challenges were not repetitious. They allowed the pathologist to
explain the path of the bullet that killed McClennon and show skull fractures that
resulted. Although the State introduced video evidence of McClennon stumbling and
falling in the moment after being shot, it is impossible to tell from the video alone what
caused McClennon to stumble and fall.
Judge Ternes did not abuse his discretion by admitting the photos.
PROSECUTORIAL ERROR
This court applies a two-step analysis to evaluate claims of prosecutorial error.
"To determine if the prosecutor erred, 'the appellate court must decide whether the
prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to
conduct the State's case and attempt to obtain a conviction in a manner that does not
offend the defendant's constitutional right to a fair trial.' [State v.] Sherman, 305 Kan. [88,
109, 378 P.3d 1060 (2016)]. If the court finds error, the burden falls on the State to
demonstrate 'beyond a reasonable doubt that the error complained of will not or did not
affect the outcome of the trial in light of the entire record, i.e., where there is no
36
reasonable possibility that the error contributed to the verdict.' Sherman, 305 Kan. 88,
Syl. ¶ 8." State v. Butler, 307 Kan. 831, 863, 416 P.3d 116 (2018).
During the State's closing, the prosecutor said, "I submit to you a justified man
who is killing because he's so scared does not run down the road to Oklahoma in a stolen
vehicle."
James argues there was no evidence to support the prosecutor's description of
Hughes' car as "stolen." The State attempts to excuse the comment as being a reasonable
inference based on the evidence. According to the State, "While defendant is correct in
noting that Hughes did not expressly testify that defendant stole her car, Hughes's
testimony, as well as that of defendant, indicated that defendant did not seek or obtain
Hughes's permission to take the vehicle."
There are two basic elements of theft: unauthorized control over the property and
an intent to deprive the owner of the property. See K.S.A. 2018 Supp. 21-5801 (theft,
permanent deprivation); K.S.A. 2018 Supp. 21-5803 (criminal deprivation, temporary).
Given the dating relationship of Hughes and James, it was at least presumptuous of the
prosecutor to state, in essence, that James lacked implicit or explicit permission to use
Hughes' car as if it were his own. Even assuming lack of authorization was established,
there was no evidence that James intended to permanently or temporarily deprive Hughes
of the car. The prosecutor's description of the car as "stolen" was error because it was
unsupported by evidence.
Moreover, as noted in James' brief, referencing an uncharged crime can be
problematic because it encourages jurors to draw an inference of a defendant's propensity
to commit crimes. Under K.S.A. 2018 Supp. 60-455(a), evidence of other crimes or civil
wrongs is generally inadmissible. Even if James' exit in Hughes' car might fall outside the
37
prohibition in K.S.A. 2018 Supp. 60-455(a) because it occurred on the same "specified
occasion" as the murder, it qualified as unnecessary and unwise as well as factually
unsupported.
To avoid reversal of James' convictions for the prosecutor's error, the State must
establish "beyond a reasonable doubt that the error complained of will not or did not
affect the outcome of the trial in light of the entire record, i.e., where there is no
reasonable possibility that the error contributed to the verdict." State v. Sherman, 305
Kan. 88, Syl. ¶ 8, 378 P.3d 1060 (2016).
In light of the entire record, the error does not require reversal. The remark was
isolated. The point the prosecutor sought to make—that a person "justified" in shooting
would not flee the state—was a valid argument, regardless of whether the car was stolen.
Moreover, the jury heard testimony that Hughes and James were in a dating relationship
and that James had driven the car to Parrot-fa-Nalia. In other words, the prosecutor's
characterization probably did more to damage her credibility than it did to undermine the
defense case. There was no dispute James simply left the scene in the same car he had
driven to it.
CONSTITUTIONAL RIGHT TO PRESENCE
"An appellate argument on a 'defendant's right to be present at every critical stage
of his or her criminal trial raise[s] an issue of law over which this court exercises
unlimited review.' State v. Verser, 299 Kan. 776, 787, 326 P.3d 1046 (2014)." State v.
Wright, 305 Kan. 1176, 1178, 390 P.3d 899 (2017) (Wright I).
Sylvester asked for, and received, trial continuances on two occasions. The
requests were made using the same generic form, and each contained a representation
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from Sylvester that he had "consulted with" James and acknowledged that the
continuance would be charged to the defendant. The State does not dispute that James
was not present when either continuance was granted.
This court has held that a continuance hearing is a critical stage at which a
defendant is entitled to be present. See Wright I, 305 Kan. at 1178.
"'Under the plain language of [the speedy trial statute,] K.S.A. 22-3402, a
continuance resulting from a defendant's request stays the running of the statutory speedy
trial period. When the request is made by defense counsel, the request for continuance is
attributable to the defendant unless the defendant timely voices an objection. Because a
defendant's disagreement matters in a statutory speedy trial analysis, a defendant must
have an opportunity to be present to express that disagreement.' State v. Dupree, 304
Kan. 43, Syl. ¶ 2, 371 P.3d 862 (2016)." Wright I, 305 Kan. at 1178.
Thus James' right to be present at every critical stage was violated when
continuances were ordered outside his presence, unless he knowingly and voluntarily
waived that right. See State v. Northern, 304 Kan. 860, 862, 375 P.3d 363 (2016).
Because we see nothing in the record to evidence such a waiver, we assume error on this
point.
Assuming James' right was violated, the error may be declared harmless under the
constitutional standard "'where the party benefitting from the error proves beyond a
reasonable doubt that the error complained of will not or did not affect the outcome of the
trial in light of the entire record, i.e., where there is no reasonable possibility that the
error contributed to the verdict.'" Wright I, 305 Kan. at 1179 (quoting Ward, 292 Kan.
541, Syl. ¶ 6).
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In Wright I, this court remanded the case to the district court for factual findings to
enable evaluation of the harmlessness of the deprivation of a defendant's right to be
present at a continuance hearing.
"Unfortunately, our ability to examine harmlessness here is stymied by the lack
of factual findings on the presence issue from the district court. See State v. Hoge, 283
Kan. 219, 221-22, 150 P.3d 905 (2007) (meaningful appellate review precluded when
trial court's findings of fact, conclusions of law inadequate to disclose controlling facts,
basis for court's findings); see also State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000)
(district judge must make factual findings before appellate review can occur). Without
more information about the parties' circumstances and the avenues available to them and
the judge on August 19, we cannot determine with any level of confidence whether
Wright's absence was prejudicial. We are unable to assume that he would have changed
the judge's mind about granting the continuance, making his trial timely commenced; we
are unable to assume that the State would have obtained the continuance in spite of
Wright's objection; we are unable to make any reliable prediction of the strength of the
State's case or the strength of Wright's defense depending on the day the trial began. See
Verser, 299 Kan. at 789-90 (strength of prosecution's case one of the factors in
harmlessness analysis after violation of defendant's right to be present at all critical stages
of trial).
"Ordinarily we would be inclined to lay the impotence of the record on appeal on
this issue solely at the feet of the State, which must demonstrate harmlessness once an
error is shown. See Ward, 292 Kan. 541, Syl. ¶ 6 (State, as party benefitting from error,
bears burden of showing harmlessness). We do not do so automatically here, because
defense counsel and the district judge also share some responsibility for the absence of
findings in the record. Defense counsel put no emphasis on this issue at the hearing on
the motion for new trial and did not object to the lack of findings. See State v. Rodriguez,
302 Kan. 85, 91, 350 P.3d 1083 (2015) (party must object to inadequate findings of fact
to preserve issue for appeal). And the judge did not ensure that all necessary findings
were made on each outstanding issue, which is inconsistent with the judge's duty under
Rule 165 (2017 Kan. S. Ct. R. 214).
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"The one person who certainly shares none of the responsibility for letting this
issue drop is Wright himself. He asserted his right to be present in the letter to Frieden,
copied to the clerk of the court, who placed the letter in the court file. Wright filed the pro
se motion to dismiss for violation of his right to speedy trial and, as part of it, again drew
the court's attention to the violation of his right to be present. He repeatedly voiced his
disapproval of the continuance Frieden obtained in his absence. This chain of events is
reminiscent of those in State v. Raskie, 293 Kan. 906, 925-26, 269 P.3d 1268 (2012), and
State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009), in which defendants took steps to
raise constitutional issues before district judges, but the judges' findings were inadequate
for purposes of appellate review.
"'When an appellate court is presented with inadequate findings, the proper
course taken depends on whether the issue was raised and can be resolved without
remand.' State v. Neighbors, 299 Kan. 234, 240, 328 P.3d 1081 (2014) (citing Raskie, 293
Kan. at 925-26 [remanding because district judge made inadequate findings on
defendant's cruel and unusual punishment argument]). We are left with no choice but
remand for findings here, because we cannot decide from the record before us whether
Wright's absence on August 19 had serious or minimal consequences." Wright I, 305
Kan. at 1179-80.
Citing Wright I, James asks for a remand for the district judge to make the factual
findings necessary for meaningful appellate review of his claim. We are unwilling to take
this step.
This case differs from Wright because the record is not silent on James'
contemporaneous attitude toward the continuances obtained by Sylvester. Although
generic forms were used, and there is no evidence of a waiver of James' right to be
present, Sylvester represented to the court that he had consulted with his client and at
least implied that James agreed with his counsel's course of action.
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In addition, the record establishes that James later acquiesced in other
continuances that postponed his trial. On April 22, 2016, James agreed to his trial being
moved from June to July to accommodate the court's calendar. At the same hearing, he
told the court, "I'm not worried about the time." In September 2016, after Mank had
finally been appointed, James again agreed to a continuance from September to
November. James personally signed off on the form requesting the continuance. Unlike
the defendant in Wright, James' initial unequivocal demand for no continuances charged
against him collapsed in the face of other exigencies, principally the need for adequate
time to prepare for new counsel.
Absent any consistent assertion of a violation of his speedy trial right or another
sign of prejudice arising from James' absence from continuance hearings, any assumed
error would not be reversible. Cf. State v. Wright, 307 Kan. 449, 456-58, 410 P.3d 893
(2018) (Wright II).
CUMULATIVE ERROR
We have identified multiple errors in James' trial, and he asserts entitlement to
reversal of his convictions under the cumulative error doctrine.
"'Cumulative error, considered collectively, may be so great as to require reversal
of a defendant's conviction. The test is whether the totality of the circumstances
substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial
error may be found under the cumulative error doctrine if the evidence against the
defendant is overwhelming.'" State v. Carter, 305 Kan. 139, 166, 380 P.3d 189 (2016).
The errors in this case consist of three instructional errors—refusal to instruct on
reckless second-degree murder, reckless involuntary manslaughter, and imperfect self-
defense involuntary manslaughter—and one prosecutorial error. In addition, we have
42
assumed a violation of James' right to be present at all critical stages because the record
contains no evidence that he knowingly and voluntarily waived that right.
The prosecutor's error during closing was a discrete error that in no way
compounded the instructional errors. See Sims, 308 Kan. at 1507 ("Taken together, these
errors in no way compounded one another; they were discrete."). Likewise, the assumed
violation of James' right to be present at continuance hearings did not compromise his
case in any way related to the other errors. The instructional errors, however, were
interwoven, and all related to James' degree of culpability in the shooting.
Despite this commonality, we nevertheless conclude that the combination of
instruction errors did not deprive James of a fair trial. Again, there were two
unequivocally competing versions of the critical moments on the night McClennon was
killed. Statements of critical witnesses for both sides had inconsistencies. Yet only one of
the versions of events had James as the aggressor. The jury must have accepted that
version when it convicted him of first-degree premeditated murder, rejecting self-defense
generally and passing up the opportunity to convict him of voluntary manslaughter on a
theory of imperfect self-defense. Cumulative error does not require reversal of James'
convictions.
CONCLUSION
We affirm the judgment of the district court.
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